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Did the Pentagon Misinform Obama When It Said Bradley Manning’s Treatment Met Our Standards?

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Back on March 11, in response to Jake Tapper’s question whether he agreed with PJ Crowley’s judgment that Bradley Manning’s treatment was “ridiculous and counterproductive and stupid,” President Obama said the Pentagon had assured him that the treatment met DOD standards.

Tapper: The State Department Spokesman PJ Crowley said the treatment of Bradley Manning by the Pentagon is “ridiculous and counterproductive and stupid,” and I’m wondering if you agree with that. Thank you sir.

Obama: With respect to Private Manning, I have actually asked the Pentagon whether or not the procedures that have been taken in terms of his confinement are appropriate and are meeting our basic standards. They assure me that they are. I can’t go into details about some of their concerns, but some of this has to do with Private Manning’s safety as well.

Tapper: Do you disagree with PJ Crowley?

Obama: I think I gave you an answer to the substantive issue.

But yesterday’s press conference appears to present problems for this story.

First of all, according to DOD General Counsel Jeh Johnson, the Pentagon review of whether Quantico was the appropriate facility for Manning began just a few weeks ago–so presumably, it started sometime after Obama was asked about Manning’s treatment over five weeks ago.

MR. JOHNSON: Well, again, it was a combination of reasons. We began to take a look at this a couple of weeks ago. You know, is there an alternative facility that might be better for him given the length of time he’s been in pre-trial confinement, given the length of time — in the future it looks — it looks as if he’ll be in pre-trial confinement. And we have this 706 interview of him coming up. And we decided, well, why don’t we let that happen first and then he should be transferred, so that — so that the group that interviews him, who as I understand are in the Washington area, don’t need to go out to Kansas. So we’ll do that, and then we’ll move him after that.

Q: You said — I think you said that that — I think a couple of weeks ago that (inaudible) —

MR. JOHNSON: Yes.

Q: — what triggered that?

MR. JOHNSON: Well, you know, this issue has been obviously in the media.

Under normal circumstances, I’d like to believe that we — if there were issues about whether another facility is more suitable for one of our pre-trial confinees, we would — we would take a look at that in a comprehensive joint fashion. Because this has been in the newspapers, people at our level have been involved in taking a look at that as well. And so that’s the process that began several weeks ago.

Q: So it is fair to say that media criticism about his treatment did play some role in his transfer here.

MR. JOHNSON: I wouldn’t characterize it that way. I think it is fair to say that because this case has been in the media, people at Dr. Westphal’s level and my level have been involved in this process, and that’s fair to say.

And while Johnson claims that Manning’s Quantico treatment was legal, both he and Under Secretary of the Army Joseph Westphal admit that Quantico is not appropriate for long-term pre-trial detention.

Johnson: We remain satisfied that Private Manning’s pre-trial confinement at Quantico was in compliance with legal and regulatory standards in all respects, and we salute the military personnel there for the job they did in difficult circumstances.

[snip]

MR. WESTPHAL: Let me just add to that.

I think the issue there is, we began discussing the fact that Private Manning had been at this facility now at Quantico for — at this time, over eight months, and that this is a facility really designed for — and the average stay for pre-trial is maybe two months. I don’t have all the details, but it’s a short stay. It’s not designed for these long-term situations.

Indeed, Johnson even admits it is “rare if not unprecedented” that someone would be held there for nine or ten months.

Q: What was no longer suitable at Quantico?

MR. JOHNSON: As Dr. Westphal said, Quantico is a place where pre-trial confinees reside for one month, two months, three months. It is rare if not unprecedented that somebody is there for as long as nine or 10 months.

When Obama was asked whether Manning’s treatment was appropriate, Manning had been in Quantico for almost eight months, several times longer–according to Johnson and Westphal–than appropriate for someone to be held in pre-trial detention at Quantico.

So how is it that the President of the United States stated he had been assured by DOD that Manning’s treatment was appropriate? Did the Pentagon misinform Obama? Or did the Pentagon not even review Manning’s treatment until after Obama got asked such questions and answered as if such a review had already taken place?

Administration Continues to Cling to Precedent of Slavery, Genocide, and Illegal Belligerency to Legitimize Its Actions

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It has increasingly become clear that the Obama Administration treats the category of “terrorist” more flexibly than the Bush Administration did. With the introduction of the term “countering violent extremism,” for example, the Administration broadened the potential application of terrorist tools to those who were simply, according to them, “extremists.” Then there’s the odd treatment of a bunch of Colombian right wing terrorists, who were extradited on drug charges (but not terrorism), and then entirely disappeared from the docket, with allegations that at least one of them had been freed. And while the Obama Administration has charged some white people with using WMD (a terrorism crime), the disparity in its use is stark.

Carol Rosenberg has been tracking another telling example of the Obama Administration’s flexible interpretations of terrorist-like activity: DOD’s citation of a legally suspect ruling about an attack on Seminoles as precedent for trying material support for terrorism in military commissions.

Pentagon prosecutors touched off a protest — and issued an apology this week — for likening the Seminole Indians in Spanish Florida to al Qaeda in documents defending Guantánamo’s military commissions.

Citing precedents, prosecutors reached back into the Indian Wars in arguments at an appeals panel in Washington D.C. Specifically, they invoked an 1818 military commission convened by Gen. Andrew Jackson after U.S. forces invaded then-Spanish Florida to stop black slaves from fleeing through a porous border — then executed two British men for helping the Seminole Indians.

Navy Capt. Edward S. White also wrote this in a prosecution brief:

“Not only was the Seminole belligerency unlawful, but, much like modern-day al Qaeda, the very way in which the Seminoles waged war against U.S. targets itself violate the customs and usages of war.”

In other words, our government is siding with slavery, genocide of Native Americans, and Andrew Jackson’s illegal belligerency–it is citing our own country’s illegal behavior–to find some support for the claim that material support is a military crime.

Not surprisingly, the Seminole tribe objected (see Rosenberg’s collection of documents in the case here).  And now Jeh Johnson (he of the claim that Martin Luther King would have empathized with the attacks on Afghans) has apologized to the tribe–but reiterated our reliance on the precedent.

The Pentagon’s top lawyer has sent the Seminole Tribe of Florida what amounts to an apology for Guantánamo war court lawyers likening al Qaida to the Native American tribe in 1818.

But Defense Department general counsel Jeh Johnson made clear in the single-page letter that the U.S. government was standing by its precedent from Gen. Andrew Jackson’s Indian Wars in its bid to uphold the life-time conviction of Osama bin Laden’s media secretary at Guantánamo’s Camp Justice.

And so it is that our government clings desperately to one of the darkest chapters of our history to legitimize its current actions. Rather than reflect on what that means–how damning it is that we can point only to Andrew Jackson’s illegal treatment of Native Americans to justify our current conduct–the government says simply, “a precedent is a precedent!”

Apparently, our country has learned nothing in the last 200 years.

Update: Jackson corrected for Johnson, thanks to JTIDAHO.

Why Won’t Jeh Johnson Answer Hank Johnson’s Question about Forced Nudity?

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The House Armed Services Committee is having a hearing on Law of War Detention. Much of it has focused on Jeh Johnson affirming that military commissions line up with American values. (In other words, it is fairly depressing.)

But an interesting exchange happened when Hank Johnson had his turn. He set up his question by talking about a recent trip to Gitmo. He described the good treatment he saw the detainees being subject to. Jeh Johnson said that we’re following the Geneva Conventions.

Then he said (working from memory), so why is Bradley Manning being subject to worse treatment.

Frankly, Hank Johnson got a few details incorrect (for example, he said that Manning had to wear shackles in his cell). But he went through Manning’s treatment reasonably well.

In response, Jeh Johnson reverted immediately to the importance of pretrial detention. He used the same old lie about Manning being able to talk to others in his cell block. Here’s a rough liveblog:

not in solitary confinement. Public misinformation. It is public that he is currently in classification status called Maximum security. Someone in Max occupies same type of cell that a medium security pretrial detainee. Same time of cell. You could have Max security and medium confinee in the same row of cells and they could converse with one another.

(That would be true if anyone was in a cell close enough to him to be able to talk to, but there isn’t.)

But perhaps most tellingly, Jeh Johnson didn’t address Hank Johnson’s question about the forced nudity Manning is being subject to.

Ultimately, Buck McKeon cut off Hank Johnson, saying that Jeh Johnson could answer him “off the record.” (?) I hope he meant for the record; we shall see.)

But for now, at least, it appears that Jeh Johnson really doesn’t want to talk about why Manning is being subject to a policy implemented–and then rejected–at Gitmo.

The Use of False Passports Does Not Make Someone an Al Qaeda Member

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Happy Fourth of July.

This week, the DC Circuit Court had to tell the government that using false passports does not make someone an al Qaeda member.

At issue is the appeal of Belkacem Bensayah, an Algerian who had been living in Bosnia alleged to have arranged travel for five others (the rest of the detainees set free after the Boumediene decision gave them habeas rights) to go to Afghanistan to fight the Americans. In the past, the government has claimed the phone number of a “senior al Qaeda member”–reported to be Abu Zubaydah–was found in his possession (PDF 19); in addition, a senior al Qaeda member (presumably also a reference to Abu Zubaydah) “reported he has known the detainee since 1993 when the detainee went to Afghanistan from the war in Tajikistan.”

But the evidence presented in his factual return consists of the following:

  • An intelligence report, labeled, “INFORMATION REPORT, NOT FINALLY EVALUATED INTELLIGENCE,” which the District Court determined could not be relied upon by itself because of “uncertainty about the source of the document and how the information therein was gathered”
  • Claims that Bensayah had ties to Abu Zubaydah–though the Appeals ruling notes that the government provided no evidence of any contact between the two
  • Proof that Bensayah had traveled on false passports in the past (Bensayah said he did so to avoid being sent back to Algeria where he feared prosecution)
  • Questions about his whereabouts in the 1990s, none of which alleges a tie to al Qaeda

The Appeals Court bounced this case back to the District Court to see if the government could come up with any more evidence.

So at one level, this is another of the many cases where the government has detained someone for years based on what Courts say is a too-tenuous connection to al Qaeda.

But this case is all the more interesting because of the way it relates to questions I raised the other day about Kagan’s comments about indefinite detention. As Charlie Savage reported in detail in March, once the Obama Administration backed off Bush’s justification for detaining alleged terrorists under Article II, it set off a debate within the Administration over whether they could detain people who had just supported–but were not a part of–al Qaeda. Harold Koh said they could not, Jeh Johnson said they could, and David Barron, acting head of OLC, basically just punted. Read more →

Squabble in Administration over Rule of War, Khadr, Drones

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Steven Edwards, one of the four journalists banned from Gitmo for reporting publicly available information, has an important story on squabbles within the Obama Administration about what should be in the recently updated Gitmo military tribunal manual. At issue is whether actions like Khadr’s alleged crime–throwing a grenade during active warfare–should be included.

The officials sought to strip a new commissions manual of a law-of-war murder definition that is central to Khadr’s prosecution in the mortal wounding of Special Forces Sgt. First Class Chris Speer during a 2002 firefight in Afghanistan, insiders say.

Omission of the segment could have also obliged prosecutors to trim or abandon “up to one-third” of its cases, according to one inside estimate.

In a turf battle familiar from the Bush Administration, the dispute pits State–Harold Koh–against DOD–General Counsel Jeh Johnson.

U.S. Defence Secretary Robert Gates signed off on the manual with the contested “comment” intact after Jeh Johnson, his legal adviser, went head-to-head with Koh, one official recounted.

“Harold Koh doesn’t have any authority over the defence department,” said this official. “The general counsel of DOD was fighting Koh on it; he advises Secretary Gates . . . who is going to follow his own lawyer.”

Of particular interest, Koh appears to have shared the concerns laid out here–that if we treated Khadr’s alleged attack as a war crimes violation, it would put our own use of drones in the same category (though I imagine it is in that category in any case).

Along with Koh, two OLC attorneys opposed the inclusion of murder in the manual. From the sounds of things, others in the Obama Administration overrode these two OLC attorneys. Which I guess is a lot easier to do when there’s no Assistant Attorney General at OLC to champion such battles. One more benefit to the unilateralists of scotching Dawn Johnsen’s nomination, I guess. But it does raise questions about whether OLC under Obama has gotten even more politicized than under Bush?

One more note before I send you off to read the whole thing. This article doesn’t mention Daniel Meltzer, the Deputy White House Counsel who resigned earlier this month to spend more time with his law students. But the timing of it would certainly line up.

Updated: Corrected reference to specific OLC lawyers–my post went beyond what Edwards wrote in his story.

Koh v. Johnson: Material Support in Far Away “Battlefields”

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I don’t know about you. But I’m sort of bored with the Holder v. Rahm fight over torture and Gitmo. My hope is they’ll start a military commission trial, it’ll get delayed and challenged, and Holder will be able to demonstrate in terms even Rahm understands that civilian trials are not just a question of politics–they are also clearly more efficacious.

Ah well.

Lucky for us, there’s a new debate to watch, this one between State Department Legal Advisor Harold Koh and DOD General Counsel Jeh Johnson, over whether Presidential wartime powers are limited to those actually in al Qaeda, or include those more loosely affiliated with the organization. As Charlie Savage describes, both have written secret memos advocating a position on the issue.

But behind closed doors, the debate flared again that summer, when the Obama administration confronted the case of Belkacem Bensayah, an Algerian man who had been arrested in Bosnia — far from the active combat zone — and was being held without trial by the United States at Guantánamo. Mr. Bensayah was accused of facilitating the travel of people who wanted to go to Afghanistan to join Al Qaeda. A judge found that such “direct support” was enough to hold him as a wartime prisoner, and the Justice Department asked an appeals court to uphold that ruling.

The arguments over the case forced onto the table discussion of lingering discontent at the State Department over one aspect of the Obama position on detention. There was broad agreement that the law of armed conflict allowed the United States to detain as wartime prisoners anyone who was actually a part of Al Qaeda, as well as nonmembers who took positions alongside the enemy force and helped it. But some criticized the notion that the United States could also consider mere supporters, arrested far away, to be just as detainable without trial as enemy fighters.

That view was amplified after Harold Koh, a former human-rights official and Yale Law School dean who had been a leading critic of the Bush administration’s detainee policies, became the State Department’s top lawyer in late June. Mr. Koh produced a lengthy, secret memo contending that there was no support in the laws of war for the United States’ position in the Bensayah case.

Mr. Koh found himself in immediate conflict with the Pentagon’s top lawyer, Jeh C. Johnson, a former Air Force general counsel and trial lawyer who had been an adviser to Mr. Obama during the presidential campaign. Mr. Johnson produced his own secret memorandum arguing for a more flexible interpretation of who could be detained under the laws of war — now or in the future.

Part of me actually wonders whether the debate stems at least partly from Johnson’s greater familiarity with whom we’re already keeping–which includes a bunch of people whose “material support for terrorism” is really quite tenuous. That doesn’t justify holding them, but this may be a question about whom we have already held for 9 years.

Still, the ramifications of holding those who materially supported al Qaeda are pretty ominous, given the fairly expansive notion this country has used to claim material support.

And meanwhile, David Barron–Dawn Johnsen’s stand-in–basically punted on this question, seemingly hoping that some judge who is not a radical Bush appointee will make the decision for him.